Texas Supreme Court Tackles Attorney-Client Privilege and the Texas Public Information Act

One of the bedrock principles of our legal system is confidentiality between attorneys and their clients. This privilege holds even when lawyers use non-lawyers to assist them in providing legal advice to their clients.[1] It also holds when a lawyer works for the government. This is why state legislatures across the country have created carve-outs for attorney-client privilege when crafting laws requiring government actors to disclose public documents. Yet the government can abuse this privilege if it uses it to hide documents that should be accessible by the public, simply by bringing a lawyer into the room.

Last term, in University of Texas System v. Franklin Center for Government and Public Integrity, the Texas Supreme Court began to deal with the tension between attorney-client privilege and the need for government transparency.[2] The University of Texas sought the protection of privilege, while Franklin Center sought to expose potential government corruption. In a 6-2 ruling for the University of Texas delivered by Justice Debra Lehrmann (Justice Blacklock not participating), the Texas Supreme Court ruled in favor of the university’s attorney-client privilege at the expense of allowing the public to access documents.

In 2014, the University of Texas hired Kroll Associates, Inc. (Kroll), a risk solutions company, to investigate potential misconduct in the university’s admission process.[3] In 2015, the Kroll Report was released, and although it found that questionable actions were taken by the former president of the university, it did not find any legal violations or violations of the university’s rules or policies.[4] Unsatisfied with the report, Franklin Center filed an open records request seeking the documents from the investigation.[5]

Under the Texas Public Information Act, documents used in the preparation of a public report are public information unless the documents are confidential under “other law.”[6] However, the university declined to disclose the information requested by Franklin Center. To do so, the university used Rule 503 of the Texas Rules of Evidence to claim that the documents which went between Kroll and the university were protected under attorney-client privilege.[7] Since Kroll is a non-legal firm, the university argued that Kroll acted as its general counsel’s “representative.”[8]

While Franklin Center initially sought 625,000 pages, by the time the matter reached the summary judgment stage, the request had narrowed to 744 documents.[9] The trial court judge ruled in favor of the university, but that ruling was overturned by the Third Court of Appeals, which held that the documents were not protected by privilege and must be disclosed to the public.[10]

When the Supreme Court of Texas decided to take this case, the issue at the heart of the case was defining what a "lawyer's representative" means under Texas Rule of Evidence 503(a)(4)(A) and applying that in the context of an open records request.[11]

In analyzing the text of Rule 503, the court split the language of the rule into a two-part test. First, the court looked at whether the non-attorney was “employed by” an attorney.[12] Franklin Center argued that the phrase “employed by” required either the lawyer or the client to have a formal employer-employee relationship with the non-attorney.[13] However, the court disagreed. Looking at Black’s Law Dictionary, the court read “employ” more broadly, focusing on the purpose of the communications and documents at issue rather than the formal title of the relationship.[14] The court set forth a “significant purpose test” emphasizing that “assisting in the rendition of professional legal services must be a significant purpose for which the representative was hired in the first instance.”[15]

The court included factors to look for in making this determination, including (1) whether the lawyer was the one hiring the non-attorney;[16] (2) whether the lawyer was the one directing the non-lawyer’s actions;[17] and (3) whether the non-attorney was expected to keep confidential the records they received from the attorney.[18] The court found that all three factors favored the university’s claim that Kroll was employed by the university’s general counsel.[19]

Second, the court looked at what it called “the crux” of the definition of a lawyer’s representative: Whether the non-attorney was hired ‘“to assist in the rendition of professional legal services.’”[20] In making this determination the court looked at both the initial contract and the final product of the non-attorney. As the court noted, “the key factor in determining whether a party falls within the definition of a ‘lawyer’s representative’ is not the formalities of the contract but rather the substance of the work the representative was hired to perform and its relation to the provision of legal advice.”[21]

Here, while the engagement agreement did not include the terms “legal advice or legal services,” it did say that Kroll was hired to determine whether UT was “beyond reproach.”[22] The court determined that ‘beyond reproach’ “included legal compliance as a necessary component,” and that Kroll’s duties included a review of relevant laws to determine legal compliance.[23] This was confirmed by the final product which included an evaluation of the university’s compliance with the law.[24]

Since the record showed that Kroll was both employed by the university’s lawyer and was assisting to render professional legal services, the court determined that Kroll was a lawyer’s representative.[25]

Although the court held that the documents were protected by attorney-client privilege, Franklin Center did not walk away empty-handed. The court remanded the case to the trial court to determine whether some of the documents protected by privilege were disclosed in the published final report, thereby waiving privilege under Texas Rules of Evidence 511(a)(1).[26]

Justice John P. Devine and Justice Jeff Boyd disagreed with the majority.[27]Although the dissenting opinion, authored by Justice Devine, applauded the court for its adoption of the “significant purpose standard” it accused the majority opinion of an “overly generous application” of the standard which “erroneously denies public access to public information.”[28] As the dissent stated, “the problem . . . is not the standard, but the [c]ourt’s loose application of it to the record on appeal, which renders the narrow-construction mandate essentially tokenistic.”[29] Specifically, the dissent emphasized that there was no contemporaneous evidence that, when Kroll was hired, either party believed legal services would be provided by Kroll.[30] This lack of contemporaneous evidence—as opposed to “post hoc affidavits”—led the dissenters to believe that Kroll was not a lawyer’s representative, and that therefore the documents should be disclosed.[31]

This is likely not the last time the Texas Supreme Court will be asked to balance the tensions between attorney-client privilege and public disclosure. Indeed, the court included a warning to government entities that “the mere copying of legal counsel, in and of itself, does not transform an otherwise nonlegal communication into one made for a legal purpose.”[32] Yet the dissenters fear that this is what will occur, stating the majority opinion “practically invites misuse.”[33]

If governments attempt to run more and more of their investigations or inquires through their legal department to avoid the Texas Public Information Act, the Texas Supreme Court will likely find itself back in the position of deciding between two competing legal values.

Learn more about state courts

Note from the Editor: The Federalist Society takes no positions on particular legal and public policy matters. Any expressions of opinion are those of the author. We welcome responses to the views presented here. To join the debate, please email us at [email protected].